Agency Flashcards
How does an agency form through an act?
The principal assents to the agent that the agent shall represent and act on the principal’s behalf to third parties and subject to the principal’s control, and the agent assents.
What are the duties owed by an agent to the principal?
- Loyalty
- Obedience to reasonable directions
- Duty of care under the circumstances
Termination of actual authority
- Lapse of specified or reasonable time
- Occurrence of specified event
- Change in circumstances
- Breach of duty (agent)
- Unilateral termination (breach)
- Operation of law (death, incapacity, filing statement of auth w sec of state)
How does apparent authority arise?
Arises from manifestations of A’s authority due to P holding out as such via P’s words, actions, or failure to act, thereby inducing 3P to reasonably but rely on that authority
Impostors: If P negligently lets impostor appear to have agency, P is liable for impostor’s actions
Lingering apparent authority: If A’s actual authority has terminated (unless by death or incapacity), he has apparent authority to act on P’s behalf as to 3P with whom P knows he dealt with, unless 3P received notice of the termination
What is ratification?
If an “agent” acts for P w/o any authority but P subsequently validates the act (expr/impl), P is bound. P must 1) know or have reason to know all material facts, 2) manifest assent through words or actions, and 3) have capacity
Undisclosed P cannot ratify unauthorized act under 2d Rest, but CAN under 3d Rest.
What is an agent’s liability to a 3P in a K?
Disclosed P: A is generally not liable (and P is liable on the K), unless K intended A to be liable
Unidentified (partially disclosed) P: A and/or P may be liable at 3P’s election. A may avoid liability by disclosing P’s identity
Undisclosed P: A and/or P may be liable at 3P’s election
What are the factors used to determine whether someone is an employee or independent contractor?
- Whether A is engaged in distinct occupation or business
- P’s control over manner and method of A’s performance
- characterization by parties
- customs of locality regarding supervision of work
- degree of skill required on the job
- whose tools or facilities are used
- length of employment (short more likely to be IC, indefinite more likely to be employee)
- basis of compensation (project basis vs. time basis)
- understanding of parties
- whether hired to further P’s business (nonbusiness purpose, e.g., mowing lawn, more likely IC)
Relationship by estoppel
If P creates the appearance of employer-employee relationship that 3P relies on, P is estopped from denying the relationship and will be liable under respondeat superior
Inherent authority is:
- Derived solely from the agency relation and exists for the protection of persons harmed by or dealing with an agent.
Group 1: A acts to further E’s business and his conduct harms 3P
Group 2: P has K liability when there is an agency relationship between P and A, A engages in acts that are normally authorized but are not bc A violated P’s instructions or acted in his own interest.
ELIMINATED in 3d Rest.
What is respondeat superior?
Under the doctrine of respondeat superior, an employer is vicariously liable for employee’s negligent acts if the employee was acting within the scope of employment
What is the scope of employment?
Performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control
What are the factors that determine if conduct is within the scope of employment:
(i) it’s the kind the employee is employed to perform;
(ii) it occurs substantially within the authorized time and space limits; and
(iii) it is motivated (in whole or part) by a purpose to serve the employer.
